In our legal system, habeas corpus, a term used by Article 43 of the Organic Law on the
Protection (Amparo) of Constitutional Rights and Guarantees (hereinafter the Organic
Law on Amparo), and belonging to our legal tradition, is an expression of the right of
amparo provided for in Article 27 of the Constitution. Its specificity lies first in its
purpose: liberty and personal security.
Venezuela’s 1999 Constitution corroborated the applicability of the protection, or amparo,
of personal liberty, or habeas corpus, to the forced disappearance of persons. The
Constitution, right after enshrining the right to personal liberty, prohibits and punishes
the forced disappearance of persons, consistent with the international human rights
instruments.
The Organic Law on Amparo provides that against any decision that resolves an amparo
action in the first instance, one may bring an appeal, and it provides for a compulsory
consultation (consulta) if there is no appeal. One may not pursue a cassation remedy to
oppose an appellate decision on anamparo matter.
It has been suggested that against a decision denying a habeas corpusmotion, handed
down on appeal from the amparo proceeding that one must exercise the “remedy” of
review provided for at Article 336(10) of the Constitution, prior to having recourse to the
Inter-American Commission on Human Rights. This thesis has no basis whatsoever in the
Venezuelan constitutional order, nor does it find support in the inter-American case law
on the rule of exhaustion of domestic remedies, given that:
(a) Article 336(10) of the 1999 Constitution does not provide a “remedy”; it provides for
a power of the Constitutional Chamber that entails the possibility of reviewing firm
amparo judgments or decisions of other Venezuelan courts’ judgments involving
constitutional review.
This power of the Constitutional Chamber may be exercised upon the initiative of the
person affected, but it may also be applied sua sponte, or at the request of a third
person, as has been declared by the constitutional case-law. As it is not a remedy, no
term is fixed for the eventual presentation of the request by an interested person.
(b) Most important, however, for the purposes of resolving the issue posed, is that the
Constitutional Chamber, in numerous judgments, has had the opportunity to clarify the
scope of this review power, and has held uniformly and repeatedly that its exercise is
“exceptional” and “discretional.” Moreover, it has stated that a private person who
requests of that Chamber that it review any amparo judgment cannot invoke any right
whatsoever as a basis for admitting the review. Admitting the review is a discretional
power of the Constitutional Chamber, in response to which a person cannot invoke any
constitutional right.
(c) The foregoing is borne out by the firm position of the Constitutional Chamber
according to which it is not obligated to render decisions on all the requests for review of
amparo judgments. It may “selectively” choose the cases that seem relevant, in which it
allows the review procedure, without there being a duty to set forth the reasoning of its
pronouncements, even when it rejects outright an application for review.
These elements make the review a sui generis mechanism without the
place in the hands of the private person an instrument that would allow
demand justice before a court; rather, it is geared to empowering the
Chamber to establish binding criteria on the interpretation of the
provisions, thereby ensuring uniformity of criteria.
propensity to
him or her to
Constitutional
constitutional
In just a few cases, those which are able to awaken the sensitivity of the justices of the
Constitutional Chamber, the review is admitted--in practice almost never--which does not
mean that the judgment will definitely be voided.
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